Berkeley councilman says city mishandled legal fees in Measure S redistricting lawsuit; city disagrees

The BSDC map approved by Judge Grillo will be used in November, unless an appeal overturns the decision.
Above, the contested Berkeley Student District Campaign map, which was approved by council in December.

Less than a week before Berkeley voters will decide whether to adopt new council district boundaries, a local official has criticized the city for how it handled legal fees for a lawsuit over the proposed council lines that are on the Nov. 4 ballot with Measure S.

It’s the latest rebuke in a prolonged public battle over district lines that began in earnest last year. City officials and staff have countered that proper procedure was, in fact, followed, and that nothing inappropriate occurred.

At Tuesday night’s Berkeley City Council meeting, local resident Stefan Elgstrand told officials he had been dismayed to learn about the payment by staff of $140,000 — which he said council did not approve — to lawyers who represented the city in a lawsuit related to redistricting earlier this year. Elgstrand, who was previously an intern for Councilman Kriss Worthington, authored a map last year that was rejected by council and has been among those leading the charge to have the adopted map thrown out. He’s also a lead organizer in the opposition campaign against Measure S. Since Elgstrand’s public comment Tuesday, Councilman Jesse Arreguín and his aide Anthony Sanchez have added their voices to the criticism, and publicly excoriated the city for how it handled the payment of the legal fees.

City officials have been working to adopt new district lines for several years, but the process has been contentious. Council adopted a new map in December, and said the boundaries had garnered widespread community approval and complied with all legal requirements. Critics of that map — including Elgstrand, Arreguín, Worthington, Phoebe Sorgen and Council 1 challenger Alejandro Soto-Vigil — then led a referendum drive to force council to rescind that map in favor of a compromise, or put the issue to the voters.


The referendum drive was successful, which suspended the use of the map council had adopted. The city then took to the courts to determine which lines should be used leading up to the November election. A judge ultimately ruled that the map council adopted should determine the districts up through Nov. 4. 

Read complete redistricting battle coverage on Berkeleyside.

Every 10 years, cities must adjust district lines to rebalance the population to ensure that each council area has equal representation to the greatest extent possible. In Berkeley, that means about 14,000 people per district. Among other guidelines, districts should endeavor to respect geographic boundaries and keep together communities of interest. They must, under city law, include the sitting council member.

Since at least 2000, students and others who live around the UC Berkeley campus have been trying to create a student-aged supermajority district with the aim of giving students a larger voice and role in city decisions, and perhaps even a seat on council. The prior boundary already included a majority of student-aged voters, but proponents of the “campus district” map wanted to increase those numbers. In 2010, a group of students and other local residents began crafting a map to boost student-aged representation in District 7, the district closest to UC Berkeley. It was that effort — from the Berkeley Student District Campaign — that council ultimately approved in December.

But opponents of that map have been vocal and proactive. District 7 Councilman Kriss Worthington has been among the loudest, describing the map as a gerrymander with political intentions beyond the creation of a student supermajority district. The map cut out an area north of campus that has historically supported him, which included numerous Cal co-ops, and concentrated District 7 south of campus.

Though the map ultimately won a 6-3 council majority — with Worthington, Arreguín and Max Anderson voting against it — its critics have been on the offensive for more than a year, and have censured the majority each step of the way. The fight went public in July 2013 when Elgstrand turned in a redistricting map after the deadline the city had set for receiving submissions in the lengthy public process. That prompted a slew of disagreements about whether council would even consider Elgstrand’s map, but ultimately officials postponed a scheduled vote and said they would do so.

When council later voted to adopt the Berkeley Student District map, its critics — including Elgstrand — promised a referendum drive, which they delivered on earlier this year, collecting thousands of signatures to suspend the map council had chosen. The city hired legal representation to help determine the proper steps forward, and council then considered whether a compromise map might be possible. Ultimately officials decided to stick with the map they had approved and put the issue to the voters.


The question then became: Which lines will voters, and council candidates as well, use in November? The city said the only legal way to determine that was to file a lawsuit and let a judge decide on the most appropriate boundaries.

Referendum supporters raised a slew of complaints about that decision as well. Arreguín and others blasted staff for hiring a law firm prior to a council vote to do so nearly a month later. They say the council majority delayed its vote on how to handle the referendum so as to miss the June deadline and push redistricting to November. (Others have countered that a November election was the best approach, as many students — a key consideration in the so-called “campus district” — would be away in June, and the city would have had to put on a costly special election.) In addition, they said council failed to provide sufficient public notice about the fact that it was considering a lawsuit.

In the face of those critiques, city staff and the council majority maintained that their actions have been appropriate and well within the legal boundaries.

Ballot language, contract issue come up in week before vote

Most of the attention this election season has been focused on Measure D’s soda tax and Measure R’s downtown initiative, but two issues cropped up in the past week related to Measure S. First, the League of Women Voters of Albany, Berkeley and Emeryville issued a strong statement reiterating its position as neutral on the measure after discovering its name had been referenced in ballot materials. Several days later, the legal fee issue arose, regarding how much the city paid its lawyers in the redistricting lawsuit, and the process it followed to authorize those payments.

Tuesday night, Elgstrand told the Berkeley City Council during public comment that he didn’t think it was fair that he now has approximately $25,000 in legal fees — as a named party who chose to participate in the lawsuit that followed the referendum — while the city uses taxpayer money to cover $140,000 in legal fees. Elgstrand said he had recently become aware of the $140,000 contract while doing research.

In late February, city staff executed a contract for $30,000 to retain law firm Remcho, Johansen & Purcell. Two months later, the city amended that contract to authorize payment to the firm of $140,000.


Councilman Jesse Arreguín said Wednesday that the contract should have been brought to council for approval when staff increased the amount.

“Worse than secretly hiring lawyers at taxpayers’ expense is the fact that the City increased the initial $30,000 contract to $140,000 without any approval ​by the elected leadership of the city​ or​ any​disclosure​ to the Council,” Arreguín said by email. “We happened to find out about this by chance.”

Under Berkeley’s municipal code, most contracts over $50,000 must be approved by a council majority as part of a public process.

“By the staff going behind Council’s back to increase the contract with Remcho it violated the spirit and arguably the letter of the Charter,” Arreguín said.

Arreguín aide Anthony Sanchez said in an email this week that he sees an inherent conflict between the city charter — which says council approval is needed for expenditures above a certain threshold — and its municipal code, which grants an exception to that rule under section 7.12.020 (which appears below).

Sanchez sent out a lengthy statement for the “No on S: Stop the gerrymander” campaign shortly before noon Wednesday that described the city payments to the redistricting attorneys as “illegal,” and said the payments had only been discovered “by accident” during Elgstrand’s research.

“You have to agree that this is bad government,” he said by email Wednesday afternoon.

City defends legal fees decision, cites municipal code

City staffers said this week that, not only was proper procedure followed regarding the legal fees, but that the payment was reported to council members in May and August, and should have come as no surprise, at least to Arreguín.

Wednesday, city spokesman Matthai Chakko defended the city’s decision to spend the money from its public liability fund without seeking council approval. He said in an email, quoting the city’s municipal code, that “payments such as the contract in question” do not need council approval beyond what appears in code section 7.12.020.

The Berkeley Municipal Charter gives the city special permission for spending city money when it comes to lawsuits.
The Berkeley Municipal Charter gives the city special permission for spending city money when it comes to lawsuits.

He said there could be various reasons for the exception, from “avoiding interference on a Council decision to disclosing potentially sensitive information that could hinder Council action.”

City attorney Zach Cowan expanded on that rationale in an email to council members late Wednesday afternoon. He told council that certain contracts for legal services have historically been exempt from the authorization requirement, regardless of the amount. He too referenced section 7.12.020 and wrote that it had “always been understood … to authorize the City Attorney to enter into contracts with outside counsel for litigation, without Council action.”

Cowan continued: “This is necessary because litigation sometimes requires immediate action, which does not always allow enough time for a Council authorization, and also because presenting an item requesting and justifying a particular sum for litigation representation could easily divulge litigation strategy that the City wants to keep confidential, especially from its litigation opponents.… There have been many examples of this, including the contracts for representation in the litigation about the Main Library and Memorial Stadium, to name two cases that cost well into the six figures.”

In the memo, Cowan explained that, in recent years — at council’s request and due to the “unexpectedly high cost of the Memorial Stadium litigation” — he has kept city officials informed about litigation costs during his confidential quarterly reports. In his May report, he alerted council to the $140,000 contract amount. That was followed in August by an update, to $190,000, of the amount that had been paid to the law firm through June 30.

Berkeley Councilwoman Susan Wengraf said Thursday that she was troubled by Arreguín’s allegations, which have been disputed by city staff and seem in conflict with the municipal code.

“He’s misguided and mistaken,” she said. “I believe that it’s a tactic to undermine the election.”

Councilwoman Linda Maio said, too, that it was rather strange to see the city criticized over legal fees related to the referendum drive Arreguín, Worthington and others had themselves organized.

“We had no choice but to get the courts to clarify [which lines to use],” Maio said via email Thursday. “If, after a long public process, Mr. Worthington’s supporters hadn’t challenged the Council’s decision on district boundaries, which was only slightly different from the maps his supporters liked, the City and the taxpayers would not have had to endure this cost.”

Tuesday, voters will decide whether to uphold the map adopted by council, or send the issue back to the drawing board for what would be the third round of redistricting proposals in four years.​

The adopted map includes 86% student-aged voters, and supporters have said they appreciate how it shifts the district south of the UC Berkeley campus because neighborhood issues there — related to crime, infrastructure and economic interests — are different from those faced by community members who live north of campus. (Read more about Yes on S.)

Beyond that, supporters say the map “meets all the criteria in the Berkeley City Charter: populations are rebalanced across all districts, district boundaries are compact and easy to understand, communities of interest are protected, and no incumbent has been drawn out of his/her district. This map meets all federal, state, and local rules for redistricting.”

Detractors of the map say it creates “a fraternity-dominated ‘Student district,'” in District 7 where “many low-income and minority students were intentionally excluded,” and that several neighborhood groups have been divided — including LeConte, Halcyon and West Berkeley — “all to favor certain incumbents and punish political enemies.” (Read more about No on S.)

Related:
Berkeley 2014 election hub: What you need to know (10.16.14)
Judge rules for council-majority-approved map in bitter Berkeley redistricting battle (04.30.14)
Berkeley redistricting maps to be on November ballot, judge to choose which lines to use (03.12.14)
Berkeley redistricting referendum effort prevails (02.03.14)
Berkeley redistricting map splits council, community (12.18.14)

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